- The Washington Times - Monday, June 2, 2003

A judge warned the government last March to consider whether terrorism suspects like Zacarias Moussaoui should be prosecuted in civilian courts, according to a transcript released yesterday.

U.S. District Judge Leonie Brinkema was reacting to the government’s insistence that Moussaoui should be denied access to a witness who could exonerate him — or spare his life if a trial reached the punishment phase.

Judge Brinkema released her heavily edited opinion a day before an appellate panel in Richmond was to hear oral arguments on whether Moussaoui — an acknowledged al Qaeda loyalist — can question a former leader of the terrorist organization in a closed-circuit hookup. He is the lone U.S. defendant charged as a conspirator with the September 11 hijackers.

The Justice Department, in papers submitted previously to the 4th U.S. Circuit Court of Appeals in Richmond, said terrorism suspects would gain the advantage in criminal trials if the judges allow the precedent-setting questioning.

Judge Brinkema, based in Alexandria, ruled in January that Moussaoui had the same right as any other defendant to potentially favorable information — and could question a senior al Qaeda leader, Ramzi Binalshibh, through a closed-circuit TV hookup. Her March opinion offered her reasons for the January ruling.

“To the extent that the United States seeks a categorical, ‘wartime’ exception” to Moussaoui’s rights, she said, “it should reconsider whether the civilian criminal courts are the appropriate fora in which to prosecute alleged terrorists captured in the context of an ongoing war.”

A military tribunal could set greater secrecy rules on national security matters and limit a defendant’s rights in some instances.

Judge Brinkema said in her ruling, “Because a criminal trial is a quest for the truth … both the defendant and the public will be denied a fair trial if Moussaoui is deprived of the opportunity to present testimony.”

Predicting dire consequences if the interview takes place, prosecutors said in written pleadings that “almost any indicted terrorist could undermine his prosecution by claiming a need for access to enemy combatants.” The government holds senior al Qaeda captives like Binalshibh in secret locations, and does not want any unauthorized people — let alone terrorism suspects — to interfere with interrogations.

While defendants normally have such access to witnesses and information that might exonerate them, the government argued the rules changed in this case because Binalshibh is an enemy combatant and courts have no authority to interfere with his interrogation.

The appellate judges must decide whether terrorism defendants have the same rights as others charged with crimes.

Binalshibh is considered by U.S. officials to have been an al Qaeda coordinator of the September 11 hijackings. Moussaoui has also asked for access to other al Qaeda captives, including Khalid Shaikh Mohammed, believed to be the mastermind behind the attacks.

Moussaoui contends he was to be part of a later operation outside the United States, but has denied he was part of the September 11 conspiracy.

The government is worried about a tactic similar to “graymail” in spy cases, where prosecutors have been forced to drop charges when defendants threatened to disclose classified information.

Moussaoui’s attorneys have just as vehemently argued the rules don’t change just because this case involves a suspected terrorist.

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